On the order of the day for receiving the report on the resolutions relative to the Judges' Salaries,
The Chancellor of the Exchequer, in moving that this report be now received, took occasion to notice certain observations that had been made on a former evening, respecting the proposed increase to the salary of the judges. Understanding it to be the wish of the House that the retired allowance of the puisne judges should be reconsidered, he had devoted his attention to that point, and it had naturally led to a modification of the full salaries. His object in proposing 6,000l. a-year to the puisne judges, without any proportionate increase of the retiring incomes was twofold: first, to induce younger men of eminence in the profession to undertake such offices; and secondly, to make the income such as would be worth the acceptance of men of great prospects in the profession—neither of which considerations had been, he thought, sufficiently attended to in the existing state of things. He had also considered the subject of translating judges from one court to another, but had not come to any fixed conclusion upon it; for, though he thought it a highly prejudicial principle, that promotion on the bench should be made a reward for the discharge of particular duties in that high station, yet he felt it would be going too far to say that in no case should it be competent for the government to make such promotion. With respect to the retiring allowances, and the consequent modification of the full salary, what he meant to propose was this—to deduct 500l. a-year from the original proposition of 6,000l. a-year to the puisne judges, and to add the 500l. so deducted to the retiring allowance of 2,300l. a-year; so that the full salary would be 5,500/. a-year, and the retiring one 2,800l. This arrangement could not, he thought, be reduced without compromising the double object of securing men for the office at an earlier period of life, and of that class of eminence which the 802 duties of the bench required. The question of the retired allowances could not be regularly modified, on the bringing up of this report, but he would propose it on a re-committal of the particular resolution which embraced that branch of the subject.
§ Mr. Scarlettsaid, that he would, on grounds of delicacy, refrain now, as he had done on a former occasion, from pronouncing any opinion as to the amount of salary of the puisne judges, but he could not forbear from noticing the proposed arrangement for retiring allowances. Now, he thought, when they considered how seldom such retirements were called for,—he hardly remembered more than two together in his time—that that branch of the consideration was of far less consequence than the settlement of the full salary. If a judge, then, were to receive 5,500l. a-year while on the bench, he must say, that 2,800l. a-year appeared to him too little, in comparison, for a retiring allowance, and hardly enough to enable the individual to maintain that station in society, which his previous office required, and which the connexions and situation of its duties must, in a great degree, still entail upon him, though he had ceased to perform the functions of a judge. The effect, then, of being too economical in the retired allowance, might be detrimental to the public service, by compelling a judge to remain longer in office than his health and faculties warranted. He remembered, indeed, an instance of this. The late baron Wood, who was an excellent judge, a profound lawyer, and a person of great sagacity, at a very advanced age retired from the northern circuit; and instead of quitting the profession altogether, was offered the seat in the court of Exchequer, which he could not, under the circumstances, well refuse. The consequence was, however, ultimately painful; for the baron's infirmities grew upon him so fast, as to render it most unpleasant to himself, to the bar, and to the public, to have the administration of justice conducted by him; he having at length lost one eye and the use of both ears. This would not have happened if the retiring pension had been adequate. To remedy such defect, he thought the retiring allowance ought to be 3,500l, a-year, to bear any fair proportion with the full salary of 5,500l. It ought to be remembered that a judge could not retire when he pleased—The government had 803 always the option of requiring his full services, as long as it was obvious that he was capable of performing them. Another consideration struck him as entitled to notice—one which, if carried into effect, would, he had no doubt, be alike pleasing to the judge and useful to the public—he meant the employment of the judges in a particular manner, even when they had retired, namely, in the privy council. See the duties which devolved upon that body! The subject at home had all the different courts of appeal open to him from one decision to another; but not so the subject in the British colonies, who had only the privy council to appeal to, and the judgment there was final. Of what importance, then, was it, that the privy council should be so composed, as to be enabled to adjudicate with legal precision and perspicuity? He had known, in times gone by, the greatest ruin to attend precipitate decisions of the council. How, indeed, could it be otherwise, when the members were persons, however acute upon other matters, whose minds were not in the daily habit of discriminating in technical matters of nice legal construction, and of bringing that particular knowledge and professional experience into the consideration which the case essentially required. He knew that this cause of complaint did not always arise; for while sir William Grant attended the privy council, they were sure of the aid of a lawyer of the most perfect constitution, both by nature and education, that it was possible to form of man—one of the greatest and most upright characters that ever adorned the bench. But the public had not always the aid of his great knowledge and talents; for, at the time when sir W. Grant for some reason was absent from the privy council, he (Mr. Scarlett) and sir Samuel Romilly had on one occasion to attend there; and he recollected that seven appeals were at that time decided quite contrary to the way which all the lawyers present thought they should have been. Now, would it not be well to call upon retired judges to assist on these occasions, by making them members of the council? The labour would be much less than that on the bench, and the duty such as a retired judge could generally discharge without oppressive fatigue. In this view he wished to be liberal in the retired allowances. He was anxious to have the resolution reconsidered, which went, in his opinion, to rob the 804 chief justice of a part of his income, to create a fund out of which to pay the puisne judges. When could he propose such a reconsideration?
The Chancellor of the Exchequer doubted whether it was competent, as the question stood before the House, to propose the increase of any particular salary, though a reduction was practicable. He was, however, anxious that the hon. and learned gentleman should have the opportunity he required, although he retained his original opinion respecting the salary of the chief justice.
§ The Speakersaid, that no alteration by way of increase of salary could be proposed in this stage of their proceedings.
The report was brought up. On the first resolution being read,
§ Mr. Broughamrose to bring forward the subject of which he had given notice, respecting the proposed arrangement of the salaries, and the translation of the judges from one judicial office to another—in fact, to re-open the whole question. He agreed, without a single exception in all that had just fallen from his hon. and learned friend, whose great experience, varied opportunities, and profound knowledge upon such matters, justly entitled him to great weight in this discussion. It was, he could assure the noise, the universal opinion at the bar, that the retiring salaries of the judges ought to bear a nearer proportion to their full emoluments. He was therefore one of those who thought the proposed scale was a bad one, and particularly as it respected the arrangement for the chief justice, who was to give up so much valuable patronage for so inadequate a compensation as 800l. additional a-year. There was no comparison between the duties of the chief and puisne judges; and it was of the utmost importance that the former should be so placed, from the dignity of his station, in a capacity to exercise that proper sway which the due discharge of business required, and which could not be practically effected, if the four sitting judges were to be nearly of co-ordinate influence. Every man conversant in the business of the courts must be aware how useful it was, that the chief should be invested with extrinsic and intrinsic authority, so as to keep a proper sway over tho proceedings of the courts. The fact was, that in any court where business must be done, a great deal depended on the lead which should be taken by the chief judge. Whatever 805 was done, therefore, in diminishing the emoluments of the chief justice, must, pro tanto diminish that sway as compared with that of the puisne judges, with which it was for the good working of the business of the court that he should be clothed. Besides, a chief justice had, as he had already stated, a quantity of business peculiar to himself; beyond all comparison greater than the other judges. Let them only remember how it stood in lord Ellenborough's time, when, on one occasion, he had to dispose of a Guildhall paper, containing 588 causes; and which he did to the astonishment and admiration of the profession. The business was not now so great as it was then, but still it was five times greater than in the time of lord Mansfield; the proportion was as 60 to 350. When he spoke of the superior and heavier duties which devolved upon the chief justice, he begged not to be considered as disparaging the puisnejudges, many of whom (particularly those in the Court of King's-bench) he had known at the bar; and more learned and virtuous men he did not belive existed; he wished merely, when he alluded to them, to speak of the comparison of labour in the courts. The puisne judges had the whole adjournment from the 28th of November till the 23rd of January. The chiefs, it was true, did not go to the spring circuits; but then they had their Nisi Prius' sittings from nine o'clock every morning until four, the constant taking down of evidence which was so much more laborious than merely hearing arguments at the bar—this business, of what Mr. Bentham would call "single-seated justice." fell heavily and laboriously upon them, and the chief had always the great responsibility of despatching it. As a proof of the superior sway which attached to the chief justice in proceeding with business, he remembered that, shortly before lord Ellenborough retired, one or two of the puisne judges were in the habit of sitting for him by turns, at nisi prius; but, vexed one morning at the accumulating arrear of business, his lordship, as if by a sudden illumination which was to shine out before his mental light became eclipsed for ever, resumed his place in court, and swept away, in them course of that single sitting, seventeen causes, which stood in the way of the regular and quick dispatch of business. It was this consideration of the value and the great additional labour of the chief judge, which induced him to say 806 that 800l. a-year additional was no compensation for the office—no remuneration for the proposed transfer of its patronage containing, among others, two offices which sold for 20,000l.: and therefore he complained.—His next objection to the scale was regarding the vice-chancellor—an office now filled by sir John Leach, than whom, there was not in the profession a more learned ornament. The lord chancellor was, of course, a learned man —a very learned man, he must be deemed the most learned of the lawyers; but still, the value of all these acquirements must be measured by their public utility, and that almost entirely consisted in their application to the despatch of business. It was there that the vice-chancellor shone conspicuous; for be did nothing else but decide causes. He sat in his court, not from eleven till two o'clock, but from ten to four. Ay, and he used to come down while suffering excruciating torments, and when his physician said that he was fitter for his bed than for the bench; nevertheless, the vice-chancellor was in his court, despatching business. He was, therefore, to all intents and purposes, a judge, if the person deserved that name who was really a judger. He knew many who thought so, and who would rather run the risk of having their causes hastily decided before the vice-chancellor, than never have them decided at all elsewhere. And yet, this was the judge whose salary in the scale was to bear no adequate proportion to that of others in the same line of rank. God wot! where was the comparison of giving 7,000l. a-year to the Master of the Rolls, and 8,000l. a-year to the chief baron? The business of the Master of the Rolls was nothing compared with the vice-chancellor's, who had the Court of Chancery business in fact to perform. This scale, therefore was wrong, and must be altered. He also thought that the salary of 8,000l. a-year for the chief justice of the Common Pleas trod too closely upon that of the chief of the Court of King's-bench, who was chief justice of all England. As to the salary of the puisne judges—and he spoke it in a place from which his expressions would in a few hours be conveyed to the bench—he thought the proposed scale too high, and that they would be well and truly paid with 5,000l.a year. When he said this, the House must feel that he gave a disinterested opinion; for it was not pleasant to speak in reduction of the incomes of those in whose presence 807 he must spend so much of his time, and with whom it was desirable for him professionally to hold a good understanding: still he must say, that 6,000l. a-year was for them quite an extravagant remuneration; and he believed none were more surprised at it than the judges themselves. The whole bar in Westminster-hall were in one ferment of astonishment at the proposition on the morning after it was made. They naturally compared the emolument and the duties with those of other offices. There was the Speaker, the first commoner in England, an office of great responsibility and heavy labour, attended with very great expense admirably sustained at present, as all must know who partook of the dignified and splendid hospitality of the Speaker's mansion; and yet his salary was only 6,000l. a-year. Now, what comparison was there between his necessary expenditure, and that of a puisne judge who had only the circuit expense to maintain? Then there was the office of Secretary of State for the Foreign Department, who had to maintain the national hospitality on a suitable scale, in the presence of foreigners of rank—who had his household expenditure also swelled by the nearly constant maintenance of messengers—who, besides, had no house provide for him; and indeed whose business consisted of no sinecure; for he had to listen to the ambitious pretensions of the Holy Alliance, to fence off all their meditated attacks upon public liberty, in the best way he could—and he had no doubt it required all his great ingenuity to do so—to make excuses of all kinds for them, both in and out of that House—to correspond back and forwards with these good people—to tell them that to attempt to assist in some of their projects would be just as much as his head was worth. Then to manage matters in debate in parliament: and all this for 6,000l. a-year ! The puisne judges were only plagued all day with the lawyers, but the Foreign Secretary was plagued with them all night—not so satisfactorily indeed for either party, for the lawyers had often a chance of gaining a cause by day, but they had little or none when they grappled with the right hon. gentleman in that House by night. On the whole, he thought 5,000l. a-year was quite enough for the puisne judges. He would propose, then, to lop off 500l. from the resolution of 5,500l. a-year, and he had no doubt he should have the 808 support of his hon. and learned friend near him.
§ Mr. Scarlett .—"No, indeed, you shall not." [a laugh].
§ Mr. Brougham—Well, then, he must do it himself. Let him not be told of the refusal of professional gentlemen to ascend to the bench for such a salary. It was easy for a lawyer to say, "I would not take it;" but there were two ways of making the offer, which reminded him of an observation of a humorous friend, who was also of the profession, who had said, that it was one thing to ask a man to take a dram when the bottle was on the table before him, and another to say "Sir, will you allow me to send to the cellar for a flask to refresh you?" A man who refused the dram in the latter case would be very apt to take it if he saw it before him. To speak seriously, it was the most idle pretence to say that the profession of the law would generally, or even commonly speaking, refuse the bench, even at the present rate of remunerating the puisne judges. He knew of no such refusal. Judge Buller had been raised to the bench at a very early age, before he had had any time to make a fortune by private practice at the bar. He had been created a judge, he believed, at the age of thirty-two, and had, nevertheless, contrived to accumulate a very large fortune in his office. He felt convinced that a salary of 5,000l. a-year was amply sufficient to command the most eminent talents of the bar.—He would now embrace a still more important part of the subject, not the salaries, but the independence of the judges. His late majesty had commenced his reign by formally declaring to the House, that "I look upon the independence and permanence of the judges of the land as essential to the impartial administration of justice, and as one of the best securities to the rights and liberties of the subject, and as most conducive to the honour of the Crown; and I recommend this to the consideration of parliament, for the purpose of making a provision to give them the secure enjoyment of their commissions during their lives and their good behaviour in their offices." Blackstone, in his Commentaries, had greatly misrepresented this. He had stated, that the late king had, by this declaration, made the judges independent of the Crown; and the inference was, that he was deserving of the gratitude of the people. Now, it was as well, in such 809 a case, to speak the truth; and the facts of the case were, that it was William the third who made the judges independent Of the Crown; the late king did nothing but secure the judges from removal from office at the demise of the Crown. Lord Hardwicke had more accurately stated, that the great hero of the Revolution had auspiciously protected the liberties of the country, by laying the foundation of the independence of the judges, and that his late majesty had found out the only thing that remained to render them thoroughly independent; namely, the securing them from a removal from their offices on the demise of the Crown. Whatever had been the motive of this proceeding on the part of his late majesty, whatever was its principle, or its tendency to promote the object for which it was avowedly designed, he had no hesitation to say, that it was a perfect delusion upon the people, as long as the Crown pursued the practice of translating the judges from the lower to the higher seats upon the bench. Whatever might be the rate of salary paid the judges, or whatever might be the mode of remunerating them—whatever regulations might be adopted as to the permanency of their appointments—the independence of the bench must always be equivocal, if not nugatory, as long as the Crown exercised the power of promoting the judges. This looking up for promotion on the bench, as in the church, naturally tended to make men look rather to their maker, than to the public good. He would not say that within his time and experience he had seen any bad consequences arise from the ambition to obtain such promotion—he had certainly never seen it to operate among their criminal judges, he only spoke of them, and not of the office of chancellor, which being partly judicial, and partly political, must of course to more expose the possessor to influence)—among them he certainly had never o served it. He could not, however, as an honest man, say that he had not sometimes seen a certain effect on some judges from particular bias—he admitted it to be rare, and unaccountable from peculiar circumstances—but generally the bench was admirably filled. Still, the Crown ought, for its own sake, to remove the sort of tendency to which he alluded, of the possibility of its existence. If they wished to preserve the purity of the judges in the public esteem, they ought to put them above suspicion. 810 He foresaw the difficulty which would be opposed to his proposition, and the choice which would be left to him between the positive prohibition to translate a person of high merit in default of finding any candidate so competent, which might occur once in half a century, and the other danger which he dreaded, of constant translation. Between those two evils, he would elect the first. He did not wish to be driven to a legislative remedy. He rather chose to embrace, by a resolution of the House, the principle which had, in the very same manner, been adopted for the basis of that brilliant act of last reign, which professed in the preamble the same intention which he now held; namely, the securing the independence of the judges. The case of baron Eyre, who was promoted to be chief baron, and then chief justice of the Common Pleas, was, he believed, the only one of the kind up to that period. He would, he confessed, have less dread of the translation of a Master of the Rolls to the same office. In the latter case, the individual was not so likely to feel the conflict of interest and duty, as in the former. He would have no predispositions as to the questions of political libel— he would have no peculiar feelings acquired from judicial habits in administering the law of high treason—nor in any of the great questions which affected the interests of the Crown, the revenue, or the tithes. His wish was, however, to emancipate them altogether from any bias on their judgment, and from any suspicion of bias in the public mind. He did not recollect any other instance of this kind of translation up to the time of the Regency. But of late years the practice had increased, so that in thirteen years there had been no less than six or seven instances of judicial translation. This was enormous. The first of these cases was that of sir Vicary Gibbs, a man of very strong political character; and therefore, in ordinary calculation, liable, in a considerable degree, to the influence to which his observations referred; though, as he very willingly admitted, in practice a very pure, impartial, and enlightened judge. He was Attorney-general in very agitated times; then was made a puisne judge of the Common Pleas, and, after that, chief baron of the Exchequer; .then chief justice of the Common Pleas; and he might have been chief justice of the King's-bench, but his infirmities grew 811 upon him so fast, that he died in a year or so after his last promotion. The next case was that of baron Thompson, a truly venerable judge—[hear, hear]—no man more readily admitted his high qualities and judicial excellence, his eminence as a lawyer, and his amiable disposition. He was at first a master in Chancery, then a puisne baron of the Exchequer, then chief baron. And here he could not but observe how groundless were the fears of not being able to get proper men to accept those offices. A master in Chancery had one of the easiest and most lucrative situations under the Crown; and yet chief baron Thompson gave up all the delights and advantages of it, to go into the Exchequer, one of the dullest courts in the universe, to attend the Old Bailey, and to drudge upon the circuit; he having seen him upon the northern circuit in his turn for many years. At that time, too, the salaries were much less than at present. The next case was that of baron Richards, first solicitor-general, then puisne baron, then chief. Mr. Abbott the present chief justice, was a puisne judge. He admitted that no man more able, more perfectly competent in all respects, could have been chosen. Mr. Justice Dallas was the sixth case, and that of Mr. Justice Best was the seventh, and all in thirteen years. What had once been an anomaly, had now become a common practice; and that under an administration that laid claim to moral principles, and a regard to decorum. This was, indeed, reducing the bench of judges to the level of the bench of bishops; and a translation on the one bench might soon, politically speaking, be as well understood as a translation ever had been understood, upon the other. It was placing the duty and the interests of the judges in perpetual conflict—a situation in which human integrity had scarcely ever yet been found capable of resisting corruption. If judges were found pure under such circumstances the public would not believe them pure; and it was the paramount duty of every government, not only to keep the ermine unsullied, but unsuspected. Not long ago every chief in Westminster-hall had been promoted from an inferior judgeship. Every one of the arch-judges had been a common judge translated, as much as a matter of course as an arch bishop was made from a bishop. A system so foul, that mocked all public decency, could not do with men who had to confront 812 opinions of a watchful public, and a jealous bar. An extreme case might be supposed of a dearth of talents at the bar, and of a puisne judge, whose integrity and wisdom might render all men desirous of seeing him in the chief-justice seat. If the amendment which he was about to move, should exclude such a man from a translation to the higher judgment-seat, it would only prove the principle he advocated, to produce a case of an alternative between the general independence and integrity of the bench, and the exclusion, once in perhaps forty years, of a man from an office which he was so well able to fill. Of the two alternatives, who could hesitate which to choose? He protested that, throughout his speech, he had intended no personal application to any man; he had spoken theoretically, and upon what had long be en acknowledged to be the fundamental principle of human nature. He wished to make the judges not only respectable, but respected. He should move an Amendment to the resolution, by inserting after the word "That" the words, "whereas it is expedient to secure the independence of the judges, by adequate salaries:—And whereas it is inexpedient, and, injurious to that independence, to promote Puisne judges to the station of Chief justice or Chief Baron, Chancellor, or Master of the Rolls, or Vice-chancellor."
The Attorney-General said, he had listened attentively to the arguments urged by his hon. and learned friend, and the conclusion to which he had come was, that it would be highly inexpedient to adopt the resolution just read from the chair. There had been adduced no instance, either in the past or the present age, which would justify the adoption of such a resolution. It must be in the recollection of the House, that the act alluded to by his hon. and learned friend had been passed in the reign of the late king, and had for its object the establishment for the independence of the judges with a view to the impartial administration of justice, and also for the purpose of impressing upon the minds of the people at large a feeling that justice would be duly and equally administered. But it did not appear to him that the resolution of his hon. friend was at all necessary to the advancement either of the one or the other object. If any established rule was to be laid down with respect to the judges, it ought to be done 813 by a specific act of the legislature, and not by a resolution of that House alone. His hon. and learned friend, however, appeared inclined to do at once, by a sweeping resolution, that which, if necessary at all, it was the duty of the legislature to accomplish. If it should appear necessary to the purity of the bench, that a gentleman once appointed a puisne judge should never be promoted to a chief justiceship, let it be so declared by act of parliament. His hon. and learned friend did not wish to remove altogether the discretion of the Crown in appointing puisne judges to chief-justiceships, but only wished it to be limited to certain extraordinary occasions. In this he could not agree. If the prerogative of the Crown was to be exercised at all, it ought to be exercised freely and without any restriction. If his hon. and learned friend could point out any abuse which had grown out of the exercise of that prerogative, then he would have some tangible ground for his resolution. No such thing, however, had he done. He had, it was true, stated that in modern times elevations from puisne judgeships to chief justiceships were much more frequent than formerly; and he had alluded in particular to the late promotion of the late chief justice of the court of King's-bench [Mr.Brougham said "No" across the table]. He understood him to say that the appointment had not been offered to the then Attorney-general [Mr. Brougham said, he had made no such assertion]. Then he would put it to his hon. and learned friend, whether, if the appointment were offered to the then Attorney-general, and that he, through an infirmity, was obliged to refuse it, and if the Solicitor-general were at the time too young for such a situation, a more judicious selection could have been made than in the appointment of the present lord chief justice [hear, hear!]? Again, he came to the chief justice of the Common Pleas. He contented himself with saying, that there were particular reasons for promoting the late chief justice Dallas. The appointment was offered to the Attorney-general, and he refused it; judge Dallas accepted the office, and filled it with high credit to himself, and great advantage to the country. His hon. and learned friend, in his zeal for one part of the question, seemed totally to forget another. If it was desirable to preserve the purity of the puisne judges, a fortiori, it was desirable to preserve the purity of 814 the chief justices. Let the House look to what had been the history of the bench from the period of lord Coke down to the present time. That learned judge was at one time chief justice of the Common Pleas, and was afterwards promoted to the chief justiceship of the court of King's-bench. He would next allude to another learned judge—one who was the brightest ornament of his profession—he meant sir Matthew Hale. He was originally a puisne judge, and was subsequently made chief justice. Lord Hard wicke was made chief justice of the court of King's-bench, and was afterwards made lord chancellor. Lord Camden was chief justice of the Common Pleas, and was also promoted to the lord chancellorship. There was also the case of lord King; but, without going more into detail, he might fairly assert, that the greater number of the chief justiceships were filled up from the bench of puisne judges. It might be, that since 1810, from accidental circumstances, there had been a greater number of such preferments than before; but, the principle upon which they were regulated was the same; and certainly, if it was culpable to promote a puisne judge to a chief justiceship, it was still more culpable to promote a chief justice to the office of lord chancellor; as that was a situation which involved many great national and political subjects. Lord Kenyon had been puisne judge long before he became chief justice [a cry of "no, no"]. He begged pardon, but such was the fact; he had been for some time chief justice of Chester. But to come to the main argument, he would ask where and by whom the line was to be drawn? Was it to be drawn by individuals; or by a vote of that House; or were they to intrust the discretion to the Crown, subject of course to the control of parliament in the event of any abuse? His hon. and learned friend, instead of pointing out any abuse hitherto, agreed that all the judicial appointments had been filled up by men of learning and talent, and character. If he understood his hon. and learned friend's argument, it amounted in point of fact to this—either the puisne judges ought to be eligible to preferment, or they ought not. If, however, as he admitted, the Crown was to have a right to give preferment in certain cases, then the discretion of the Crown ought to be free and unfettered. But, if the right of the Crown to prefer was to be restricted in every case, 815 it ought to be by a specific enactment of the legislature to that effect, and not by a resolution of the House of Commons alone. He did not feel called upon to go more at length into the arguments urged by his hon. and learned friend, but should conclude with observing, that his resolution was extravagant, inexpedient, and altogether uncalled for.
§ Mr. Scarlettsaid, he could not reconcile the inconsistency of his right hon. and learned friend in saying that there ought to be no resolution, with the conduct of the chancellor of the Exchequer in proposing a resolution. If it were inexpedient, then why was any resolution proposed? He could perfectly understand the design of his hon. and learned friend near him, who wished to propose the sentiment of the House (and which he must take leave to say was that of the public generally) in a way which would hand it down to posterity for the guidance of their conduct. But he invited his right hon. and learned friend to consider the effect of what he had uttered. He allowed no qualification whatever: he declared every resolution of the kind to be unwise and inexpedient. Again, let him only remark the inconvenience of intrenching himself behind individual cases. How was it possible for his opponents to argue with him while he remained in such perfect safety? They took general and abstract grounds, to which the right hon. and learned gentleman without any reasoning upon them at all, opposed individual circumstances. Of course there could be no argument on those terms. Suppose he were to take up the statements of the right hon. and learned gentleman and put a particular case. In the time in which Mr. Garrow was Attorney-general there were no less than three vacancies—two as chief baron, and one as chiefjustice of the Common Pleas. Were either of these offices tendered to Mr. Garrow? Was he not a man of eloquence equal to any man—of consummate talent in his profession—of high legal attainments? What objection could there have been to his appointment? Would it be pretended that he was like some other great men who had preferred ease and retirement? The fact was the other way. He solicited and obtained the situation of puisne judge. It was impossible to offer an objection to his appointment; and yet three chief judgeships were vacant, and not one was offered to him. 816 It could not be presumed that the chancellor, who had the recommendation of the judges, wished to insult a man of baron Garrow's character by quietly passing him by. It was much less to be supposed that he would before that have advised his promotion to the office of Attorney-general, if he had not been convinced that he was equal to the highest offices of the law. Such was the inconvenience of arguing upon individual cases. As to the cases of former times, he had always understood that lord Hardwicke had taken the chancellorship very unwillingly. The right hon. gentleman should recollect, that it only belonged to modern times for a chancellor to hold the seals for five and twenty years, or a quarter of a century. At that time a lord chancellor was considered only as a minister subject to removal with his friends. No one dreamed of holding that great and lofty situation for life, as in our times. No doubt the public derived the highest advantages from the judge who now held the office. But, could lord Ellen-borough be prevailed upon to accept it? No: he preferred being chief justice of the King's-bench. Lord Mansfield refused the seals. Lord Camden accepted them with difficulty, to oblige his party; nor was he ever known to be satisfied with the exchange. Until the right hon. gentleman could get up a joint-stock company to ensure the possession of the office for half or quarter of a century, the office of chief justice would be preferred to that of chancellor. It was urged that the appointment of puisne judges was in the king; but it was well known, that the lord chancellor had, for years, exercised the right of nominating to those appointments. And yet it must be confessed that the appointment by the lord chancellor, who was himself a member of the administration, was most likely to bring the office of the judge into disrepute and disgrace in the minds of the people. The case of lord Coke had been alluded to; but it should be recollected that that learned judge, after having sat upon the bench, had been removed, and subsequently practised as a barrister, and that he afterwards became a member of that House. He, and those who thought with him upon this subject, did not object to the king's exercising the discretionary power of appointing puisne judges to chief justiceships upon great and necessary occasions. They Wished only to es- 817 tablish a rule to the contrary; which rule was only to be deviated from upon full and ample grounds for such deviation being made apparent. The resolution went to embody die feelings of the public upon the subject, and to show the spirit in which the salaries of the judges were increased.
Mr. Secretary Canningsaid, that though gentlemen of the legal profession were much better judges of the subject than he could pretend to be, yet he could not refrain from offering a few observations upon it. And, conceding all that had been urged by the hon. and learned gentleman who spoke last, he felt bound to come to the conclusion, that the resolution proposed by the hon. and learned member for Winchelsea ought not to be adopted; seeing that the adoption of that resolution would lead to a discussion on the propriety or impropriety of every judicial appointment which the Crown might hereafter make. If such appointments ought not to be vested in the Crown, let a specific act of parliament be introduced to that effect. But, if the Crown was to exercise a discretion in the appointments, he would say with his hon. friend the Attorney-general, let that discretion be free and unfettered; subject however, to the opinion of that House in the event of any abuse. Such a course would be open and straight forward; but the proposed resolution would have the effect of attacking, by a side wind, every appointment of the Crown, while it made parliament share with the king, or his ministers, the duty and responsibility of each appointment. He was most anxious that the judges should be free and independent, but he was also anxious, that they should be so placed as to enjoy the confidence and favour of the people. He could illustrate his argument by alluding to what had taken place upon the Regency Bill. It then became a question as to the latitude to be allowed to the prince Regent in creating peers, and it was proposed that he should only have the power of extending the peerage to men of extraordinary military merit. Now, there was scarcely a man in the House, be his opinion right or wrong upon the general question, who did not perceive at once the folly of such a restriction. It might be right or it might be wrong to give this power to the prince Regent; but it was felt by all that the proposed measure would cast upon the House of Commons 818 the duty of discussing the propriety or impropriety of each elevation to the peerage. So it would be in the present case. Either let the Crown be restricted by law from appointing to the higher law preferments, or else let it have the exercise of free and unfettered discretion, subject, of course, to that inquiry on the part of the House, which any violation of the rights and interests of the community would render necessary. No man was more anxious to preserve the purity of the Bench than he was; and he must set his face against making every preferment of the Bench a matter of necessary discussion in that House.
§ Lord Althorpexpressed his cordial concurrence in the motion of his hon. and learned friend. The right hon. gentleman had contended, that if the resolution was correct it ought to be followed by an act of parliament. That, however, did not follow necessarily; for the House might choose their own course, whether to proceed by bill or by resolution, even if it was their opinion, as he would confess it was his own, that the discretion alluded to ought to be taken from the Crown. He did not feel himself competent to enter at any length into a subject of that nature. He would, however, state it as his decided opinion, that the removal of such discretional power would he attended with great advantage to the justice of the country, and to the character of the judges themselves.
Mr. Secretary Peelwas ready to admit, that if it was the intention to follow up the resolution by an enactment, the observations of the noble lord would apply; and that, he thought, a complete answer to the general spirit of his observations. The hon. and learned gentleman on the other side had said that there was an inconsistency between the argument of his learned friend, the Attorney-general, and the motion of his right hon. friend the chancellor of the Exchequer, the former having objected to the mode of proceeding by resolution, and the latter having adopted that mode. But there was no inconsistency in this; for there might be, as there was, an objection to it in the one instance, and not in the other. His right hon. friend had said, that if they increased the salaries of the puisne judges, persons in the prime of life would be found to accept the office. But that would be no reason for adopting the proposition, that no judge should be appointed under the age of forty- 819 five, if any member on the other side should think proper to propose it. In fact, as his right hon. friend had just said, there was no middle course between taking away the prerogative from the Crown and leaving it to be exercised at discretion; if any improper use was made of that discretion, then the House would be called upon, by its duty, to remonstrate in the form of resolution. But the whole speech of the hon. and learned gentleman, who had alluded to Mr. Baron Garrow as one of the most competent to fill the office of chief justice, went to shew the right of the Crown to appoint all officers. But, how did the resolution propose to deal with that right? It affirmed, in direct terms, that it was injurious to appoint individuals under certain circumstances to the office of chief justice. An exception, indeed was made in favour of cases of rare merit, but would it not be hard upon these persons of rare merit to be subject to have their appointments met by a resolution of the House of Commons, such as that which was now under consideration? The prerogative ought, as he had said before, to be left to the Crown, and only interfered with in cases of abuse, when ministers might be called upon to answer on their responsibility. The resolution was unconstitutional, for if passed into a law, it would be little short of binding the Crown to consult the House of Commons on the appointment of every judge. His hon. and learned friend, the Attorney-general, had alluded to individual instances, in order to spew the grounds upon which they had been passed over. Mr. Serjeant Shepherd, for instance, had been prevented, by deafness, from accepting the office of chief justice of the King's-bench. Sir R. Gifford, the present lord Gifford, was not appointed to the office of chief baron, as he was a very young man at the time of the last appointment.
§ Mr. Broughamsaid, across the table, that his observations were applied to the chief justiceship of the King's-bench exclusively.
Mr. Secretary Peel ,in continuation, observed, that the discretion of the Crown in these matters ought to be left altogether unfettered, unless it was meant to be proposed to take it away altogether; in which case a bill for the specific purpose must pass through both Houses of parliament. The present resolution provided matter merely for the preamble. Its 820 principle would at once limit the prerogative of the Crown, and impose upon it a sort of necessity to consult the House of Commons upon almost every judicial appointment. On these grounds, he should certainly oppose this resolution.
§ Mr. Humeexpressed his entire concurrence in the motion. It was necessary that the House should take some step to prevent appointments which were likely to produce dissatisfaction in the public mind. If such a resolution had stood upon the Journals, they would never have witnessed the appointment of Mr. Best to the chief justiceship of the Common Pleas; an appointment which there was not one individual at the bar who did not deprecate. It was most unpleasant to the country, and most disgraceful to those who recommended it to the Crown.
§ Mr. Serjeant Onslowdeclared, that the hon. member for Montrose, so far from speaking the sentiments of the bar of England relative to the appointment of chief justice Best, was uttering those that were exactly the reverse of them. While at the bar, not only was this eminent judge one of the ablest men in Westminster-hall, and at the head of his circuit, but sought after in all the other courts. Since he had become a judge, he had manifested the same integrity, application, and extensive knowledge of his profession that had marked his former career. He knew it was much the habit to attack that learned judge, in consequence of his having presided at a political trial which excited a good deal of interest at the time. But there was not a judge on the bench more competent to the duties of his office, whatever prepossessions might be entertained against him.
§ Mr. Denmansaid, he did not mean to enter into any discussion of the kind upon which the learned serjeant had just ventured, although it might be fairly objected, that this proposition, had a direct tendency to draw the House into such a discussion. He agreed with his hon. friend in thinking that the right hon. and the hon. gentlemen who had spoken from the other side were inconsistent. When it was said, that if the Crown should make an improper appointment, it would be open to the House to address the Crown for its retraction, he begged to ask, whether it would be possible, in the case of an untried judge (against whom there might exist every objection, but who had not yet proceeded to the exercise of his 821 judicial functions), to do so? Ever since the period at which English judges were declared to be irremovable, except by reason of misconduct, no judge bad been removed, in England, from his office. Two cases of Irish judges so removed, had, he believed, occurred. [cries of No."] He thought there had. One of them had resigned, and the other died; but in neither case was there any address to the Crown moved in that House; and this was a fact that might demonstrate the futility of the argument made use of by hon. gentlemen opposite. When for a hundred and twenty years there had been no instance of such an address, it was treating the House like children to tell them, that in the case of improper judicial appointments, they might address the throne. He had been very much surprised not to have heard, in the course of the speeches which had been uttered that night, one word said about the Welch judges. And yet there was one of those judges whom he must declare (from the circumstances connected with his own conduct which that individual had brought before the public), that if the Crown had the power to remove, it ought not to be justified in abstaining from removing. He alluded to the well known case of Mr. Kenrick. In Mr. Kenrick's case, he did not find that the power of addressing the Crown had been invoked at all—he did not find that any of the servants of the Crown had come down to that House to submit to it the propriety of urging this gentleman's removal. With respect to the proposition of his hon, and learned friend, it did seem to him to have met the case which it was intended to meet. But, whether, according to the objection of the right hon. gentleman, it would be the foundation of a preamble only, or the substance of the whole bill, it would at least have the wholesome effect of giving the Crown a hint of the opinions of the people on this subject. As to the promotion of Mr. Justice Abbott to be chief justice of the court King's-bench, he would only say, that had there at that time existed a resolution of the House to guide the discretion of the Crown, he thought he could have anticipated another nomination. He would even venture to suggest the name—and that was going very far—of the person he was now speaking of; and whose appointment at that period would have given universal satisfaction to the country,—an individual whose name 822 could not be mentioned without exciting in all who knew him the warmest sentiments of admiration and respect—he meant Mr. Serjeant Lens [hear, hear]. It was the absence of such wholesome resolution that had led of late to the appointment of junior judges to the chiefs; a system which evidently must have this effect—that from time to time the influences of hope and fear would be operating on the minds of the puisne judges, to the disparagement of the purity and integrity of justice.
Mr. Wynnconfessed that he drew a very different inference from that which the hon. and learned gentleman arrived at, from the circumstance of there being no instance in a period of 120 years of the removal of an English judge; for he concluded from such a fact, not that parliament had neglected its duty, but that the judges had faithfully discharged theirs. A good deal had been said about Mr. Kenrick's case. Why, Mr. Kenrick, as yet at least, had only been prosecuted as a private individual; and he had also been proceeded against as such. There was no indictment against him as a judge; how, then, by possibility, could the Crown have interfered with him in his judical capacity? By a reference which he had taken the trouble to make, it appeared that from the year 1700 to the present time, there had been sixteen chief barons appointed. Now, how many of these did the House suppose had been appointed without being previously puisne judges? Only five. With regard to Mr. Serjeant Lens, he had long enjoyed the honour of his friendship; and he could state that some years ago the chief justiceship of Chester was offered to him, and he declined it. Again, when the vacancy of the appointment that had so often been mentioned that night occurred, he could state that the health of serjeant Lens had already began to fail him. He did not know whether the chief justiceship of the King's-bench was ever actually offered to the learned serjeant by the administration of the day, but he was very sure that at that time his health was in a condition that would have compelled him to refuse any such offer. Upon the whole, he really thought that if the resolution proposed by the hon. and learned member had gone on to declare, that under no circumstances of superior talent, or merit even, should any puisne judge be hereafter appointed a chief justice, it would 823 have been more consistent than in its present form; under which, at all events, he felt compelled to vote against it.
§ Mr. Denmanbelieved that at the time the chief-justiceship vacancy occurred, Mr. Serjeant Lens was in good health. He knew that the serjeant had refused the political offices of solicitor-generalship, and the chief-justiceship of Chester; but were these refusals reasons why the chiefjusticeship of the court of King's-bench should not have been given him?
§ Mr. Broughamsaid, that Mr. Serjeant Lens had expressly stated that he refused the solicitor-generalship on political grounds only.
Mr. Abercrombysaid, there could be no doubt as to what the modern practice was, when they saw that two out of the three of the present chief justices had been appointed to the situation of puisne judges. It was easy to imagine cases in which great dissatisfaction might be felt, and great want of confidence on the part of the public, and yet no one would undertake the task of moving a resolution such as the right hon. gentleman would hold out as their best security against the abuse of the prerogative. He contended there would be no difficulty whatever in stating as a reason for the liberal grant they were called on to make to the puisne judges, the probability of their never attaining a higher situation. There was nothing in this unusual or unconstitutional. He was surprised at the doctrine of the right hon. gentleman as to Mr. Kenrick. He had himself been asked several times, Would no member of the House of Commons make a motion for the removal of Mr. Kenrick? And the reason why it was not done was the difficulty of doing it. Though Mr. Kenrick could not be removed, because that gentleman had done nothing in his magisterial capacity, what would be the feelings of criminals who might know of the conduct of that judge? He thought that this was a case in which something should be done, and in which it was almost impossible for any member to act on the right hon. gentleman's suggestion. In fact, unless in very extraordinary cases, which the vigilance of the public prevented. It was never possible for the House of Commons to move an Address to the Throne for the removal of a judge; and yet there were numerous trifling circumstances which might justly deprive a judge of all confidence.—Before he sat down, he wished to direct the 824 chancellor of the Exchequer to the office of the vice-chancellor. He had had no communication with the vice-chancellor on the subject, and the suggestion was entirely his own; but the vice-chancellor now performed all the substantial duty of the lord chancellor in equity. He heard motions, decided bankrupt petitions, and most of the equity business of the chancellor. He was not so high in rank as the Master of the Rolls; but if his salary were to be apportioned by the business he performed, at least he ought to have as large a salary as the Master of the Rolls.
List of the Minority Allen, J. A. Lushington, Dr. Althorp, lord Martin, John Bernal, R. Palmer, Fyshe Boughton, sir R. Rice, S. Brougham, H. Robinson, sir G. Carter, John Scarlett, J. Crompton, S. Smith, W. Denman, T. Sykes, D. Fergusson, sir R. Warre, J.A. Guise, sir W. Webbe, col. Heron, sir R. Western, J.C. Honywood, W. P. Williams, sir R. Hume, Jos. Wilson, sir. R. Jones, J. TELLERS Kennedy, F. T. Abercromby, hon. J. Lamb, G. Grant, J.P.
§ The House divided on Mr. Brougham's motion: Ayes 29; Noes 112.